Pure Technology NCNDA


Mutual Non-Disclosure, Non-Circumvention, & Non-Competition Agreement


This Mutual Non-Disclosure, Non-Circumvention, & Non-Competition Agreement (hereinafter “Agreement”), dated as of , is entered into between Pure Technology Inc., a corporation registered under the laws of the State of Delaware in the United States of America, whose business address is 25 Prospect Avenue, Montclair NJ 07042, and , on behalf of whose principal place of business is located at .

This Agreement combines a non-disclosure, a non-circumvention, and a non-competition agreement. For purposes of this Agreement, the Party providing Confidential Information (as that term is defined below), and such Party’s Affiliates (as that term is defined below), shall be referred to collectively as the “Disclosing Party” and the Party receiving the Confidential Information, and such Party’s Affiliates, shall be referred to collectively as the “Receiving Party”. When referred to individually without regard to Disclosing Party or Receiving Party, the term “Party” shall be used; when referred to collectively without regard to Disclosing Party or Receiving Party, the term “Parties” shall be used.

The Parties hereto agree as follows:

1. Business Purpose. This Agreement is entered into in order for each Party to obtain from the other Confidential Information for the sole purpose of permitting the Parties to explore a potential business opportunity, transaction or relationship involving the Parties (“Business Purpose”). In connection with the exploration of such potential opportunity, transaction or relationship, each Party may disclose to the other certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential.

2. Confidential Information. As used herein, “Confidential Information” shall mean any and all information provided, furnished or disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in whatever form or medium (in writing, orally, or by inspection of tangible objects), which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Such Confidential Information shall include, without limitation, such Disclosing Party’s intellectual property, clients, customer lists, business contacts, business plans, business documents, business policies, procedures, techniques, know-how, standards, products, prototypes, product samples, software, source or object code, product or service specifications, manuals, agreements, economic and financial information, marketing plans, data, reports, market research, analyses, compilations, statistics, summaries, studies, customer proprietary network information as defined in 47 U.S.C. 222, and any other materials or information, or any materials based thereon, whether written or oral, furnished directly or indirectly by a Disclosing Party or any of such Disclosing Party’s directors, officers, employees, agents, attorneys, accountants, advisors and other representatives (collectively, the “Representatives”). Any technical or business information of a third person furnished or disclosed by the Disclosing Party to the Receiving Party shall be deemed “Confidential Information” of the Disclosing Party and subject to the terms of this Agreement. The term “Confidential Information” shall not include information which: (I) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of this Agreement; (iii) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives that is not bound by a confidentiality or similar agreement prohibiting the disclosure thereof, (iv) is within the Receiving Party’s possession prior to being furnished, provided the Receiving Party can establish with appropriate documentation that the same or substantially similar data or information was already in the Receiving Party’s possession at time of disclosure by the Disclosing Party, (v) has been independently developed by the Receiving Party, provided the Receiving Party can establish with appropriate documentation that the same or substantially similar data or information was developed by the Receiving Party without reference to, use of, or reliance upon the data or information disclosed by the Disclosing Party; or (vi) is required by law to be disclosed by the Receiving Party, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure, if permitted by law, and assistance in obtaining an order protecting the information from public disclosure.

3. Affiliates. As used herein, “Affiliates” shall mean, with respect to any person, entity, or enterprise, any other person, entity, or enterprise that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with such person, entity, or enterprise. “Control” (including the correlative terms “Controls”, “Controlled by”, and “under common Control with”) shall mean, with respect to any person, entity, or enterprise, the power, directly or indirectly, either to (I) vote a majority of the voting shares or other voting interests in such person, entity, or enterprise for the election of directors or other governing body of such person, entity, or enterprise or (ii) direct or cause the direction of the management and policies of such person, entity, or enterprise, whether through the ownership of voting securities, by contract, or otherwise.

4. Non-Use and Non-Disclosure. During the term of this Agreement, as specified in Paragraph 11 (the “Term”), the Receiving Party and its Representatives shall keep Confidential Information confidential and shall not, without the Disclosing Party’s prior written consent, disclose any of the Confidential Information in any manner whatsoever, in whole or in part. The Receiving Party agrees to reveal the Confidential Information only to Representatives who need to know, who are informed by the Receiving Party of the confidential nature of the Confidential Information, and who agree to act in accordance with the terms and conditions of this Agreement. Each Party agrees not to disclose any Confidential Information of the other Party to third parties or to such Party's Representatives, except to those Representatives of the Receiving Party who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Each Party agrees not to use or benefit from or seek to benefit from any Confidential Information of the other Party for any purpose except to evaluate and engage in discussions concerning the Business Purpose. Neither Party shall reverse engineer, disassemble, decompile or reduce to a human perceivable form any prototypes, software or other tangible objects which embody the other Party's Confidential Information and which are provided to the Party hereunder. Without the Disclosing Party’s prior written consent, the Receiving Party shall not disclose to any person, entity, or enterprise the fact that the Confidential Information has been made available, the existence of discussions concerning a possible transaction or relationship involving the Parties or any of the terms, conditions, or other facts with respect to any such possible transaction, including, without limitation, the status thereof. The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Disclosing Party of such Confidential Information against any and all Representatives and Affiliates of the Receiving Party who are recipients of such Confidential Information.

The Receiving Party acknowledges the competitive value and confidential nature of the Confidential Information and that disclosure thereof to any third party could be competitively harmful to the Disclosing Party. In the event that the Receiving Party or any party to whom it transmits the Confidential Information in accordance with the terms and conditions of this Agreement becomes legally compelled to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice, so that the Disclosing Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information which is legally required and the Receiving Party shall exercise its reasonable best efforts to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information.

5. Non-Circumvention. The Receiving Party hereby agrees for himself or herself, their officers, directors, agents, associates and any related parties, that they will not, directly or indirectly, contact, deal with or otherwise become involved with any entity or any other entities or parties introduced, directly or indirectly, by or through the other party, its officers, directors, agents or associates, for the purpose of avoiding the payment to the Company of profits, fees or otherwise, without the specific written approval of the Company. Furthermore, at any time prior to the expiration of three (3) years from the date of this agreement, it is expressly agreed that the identities of any individual or entity and any other third parties (including, without limitation, suppliers, customers, financial sources, manufacturers and consultants) discussed and made available by the Disclosing Party to the Receiving Party in respect of the Purpose and any related business opportunity shall constitute Confidential Information and the Recipient or any Group company or associated entity or individual shall not (without the prior written consent of, or having entered into a commission agreement with, the Disclosing Party):
a. directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any such third party identified or introduced by the Disclosing Party; or
b. seek to by-pass, compete, avoid or circumvent the Disclosing Party from any business opportunity that relates to the Purpose by utilising any Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
c. further Receiving Party agrees not to directly compete with Disclosing Party for a period of 1 year following end of agreement.

6. Maintenance of Confidentiality. Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party among its Representatives and Affiliates. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its Representatives and Affiliates who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content and substances similar to the provisions hereof, prior to any disclosure of Confidential Information to such Representatives and Affiliates. Neither Party shall make any copies of the Confidential Information of the other Party unless and until such duplication is previously approved in writing by the other Party. Each Party shall reproduce the other Party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

7. No Obligation. Except for the obligations set forth herein, no obligation of any kind is assumed or implied against either Party by virtue of the disclosure of Confidential Information, or by the meetings and conversations between the Parties with respect to the subject matter hereof or with respect to whatever Confidential Information is exchanged. This Agreement imposes no obligation on the Parties to exchange Confidential Information or to purchase, sell, license transfer or otherwise make use of any technology, services or products. Each Party acknowledges that this Agreement and any meetings and communications of the Parties shall not constitute an offer, request, or contract with the other to engage in any research, development, or other work, nor constitute an offer, request, or contract involving a business transaction or business relationship between the Parties. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Business Purpose.
Notwithstanding anything else to the contrary, this Agreement shall not be construed to impair or restrict either Party’s or any of its Affiliates’ right to develop, provide, use, acquire, procure, sell, or market, jointly or individually, mobile communication products or services, now or in the future, or enter into any agreement, contract, relationship, partnership, or joint venture with another party regarding the development, provision, use, acquisition, procurement, sale, or marketing of mobile communication products or services in any manner whatsoever.

8. No Warranty. The parties expressly acknowledge and agree that Confidential Information is provided “AS IS.” EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION, AND EXPRESSLY DISCLAIMS ALL IMPLIED OR EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON INFRINGEMENT.

9. Return of Materials. Within a reasonable time after the Disclosing Party’s written request at any time during the Term, the Receiving Party shall promptly redeliver all material containing or reflecting any information contained in the Confidential Information and will not retain any copies, extracts, or other reproductions in whole or in part of such written material. All documents, memoranda, notes, or other writings whatsoever based on the information contained in the Confidential Information shall be returned or destroyed, and such return or destruction shall be certified in writing to the Disclosing Party by an authorized officer of the Receiving Party supervising the return or destruction. The requirements of confidentiality set forth herein shall survive the return or destruction of such Confidential Information. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either Party to the other Party, and all copies thereof which are in the possession of the other Party, shall be and remain the property of the Disclosing Party.

10. No License. Nothing herein is intended to grant nor shall be construed as granting any right or license under any inventions, patents, trademarks, trade names, trade secrets, know-how, mask work right or copyright or any other property right, now or hereafter owned or controlled by the Disclosing Party. Nor shall this Agreement grant any Party any rights in or to the Confidential Information of the other Party except as expressly set forth herein. The Receiving Party acknowledges and agrees that it will use the Confidential Information solely for the Business Purpose contemplated by this Agreement or any agreement hereafter entered into by and between them and for no other purposes of any kind whatsoever.

11. No Intellectual Property Rights. Neither Party acquires any intellectual property rights under this Agreement or through any disclosure hereunder, with the exception of the limited right to use such Confidential Information in accordance with this Agreement.

12. Term. The term of this Agreement shall begin on the date of this Agreement and end on the date that is the later of (a) three (3) years after the date of this Agreement, or (b) three (3) years after the date of termination of any other agreement made by and between the parties.

13. Remedies. The Receiving Party acknowledges and agrees that, given the nature of the Confidential Information and the competitive damage to the Disclosing Party that would result if information contained therein were to be disclosed to any third party or used for any purpose not contemplated or intended under this Agreement, money damages would not be sufficient remedy for any breach of this Agreement by the Receiving Party, and that, in addition to all other legal rights and legal remedies, the Disclosing Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. And the Receiving Party further agrees to waive any requirement for the securing or posting of any bond in connection therewith.

14. Scope of the Agreement. Due to the valuable and proprietary nature of the Confidential information disclosed, the obligations assumed by the Parties hereunder shall (a) not be limited to specific territory; or, (b) if it is held by a court of competent jurisdiction that this provision, (a), is illegal, invalid or unenforceable, this Agreement shall apply only within those territories within which the Disclosing Party then carries on business.

15. Prior Relationships. If either Party has already established a previous relationship with the parties to a transaction or the contact introduced in the specific transaction, the Party with the previous relationship or transaction will immediately notify the other Party by email or fax, outlining the prior relationship. And, in that specific case, the Party with the previous relationship or transaction will be exempt from the non-circumvention clause of this Agreement. Established previous relationships are those which:
● at the time of disclosure is readily known or available to the trade or the public;
● which can be established by documented and competent evidence, which evidence was in the Party claiming the prior relationship’s possession prior to the date of disclosure of such information; or ● any information which the Receiving Party is by law required to disclose by law.

The other Party reserves its abilities and rights to dispute the existence of prior relationships. The Parties agree that this Agreement shall not be construed to impede the development of normal day-to-day business relationships regardless of the existence of a pre-existing relationship on the part of either Party, such as other direct sellers, including, but not limited to, lenders and other mortgage brokers.

16. Jurisdiction. This Agreement shall be solely and exclusively governed by and construed in accordance with the laws of the state of Delaware, United States of America, as applicable to contracts to be performed entirely within the State of Delaware and without regard to its conflicts of law principles. All judicial proceedings to be brought with respect to the Agreement or any other dispute between the Parties hereto shall be brought solely and exclusively in any state or federal court located in the state of Delaware (the “Court”) and by execution and delivery of this Agreement, the Parties hereto each accepts generally and unconditionally the exclusive jurisdiction of the Court and irrevocably waives any objection (including, without limitation, any objection of the laying of venue based on the grounds of forum nonconvenient) which either of them may now have or hereafter have to the bringing of any such action or proceeding with respect to this Agreement or any other dispute in the Court.

17. Adherence to Applicable Laws and Regulations. A Receiving Party will adhere to all applicable laws and regulations governing such Party’s conduct in connection with this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act, and any laws or regulations of the U.S. Department of Commerce Bureau of Industry and Security and will not export or re-export any technical data or products received from the Disclosing Party, or the direct product of such technical data to any proscribed country listed in the U.S. Export Administration regulations unless properly authorized by the U.S. government.

18. No Assignment. Neither Party shall have the right to assign this Agreement, in whole or in part, without the prior written consent of the other Party, such consent not to be unreasonably withheld. Upon such assignment, all obligations and duties of the assigning party under this Agreement shall continue to bind such assigning party and be binding on all successors in interest and permitted assigns of such party.

19. Entire Agreement. The Parties hereto agree that this Agreement constitutes the complete and exclusive statement of the terms and conditions between the Parties covering the subject matter hereof, supersedes all prior agreements and understandings concerning such subject matter, whether oral or written. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both Parties hereto or by an authorized Representative of each Party. Neither Party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other Party except as set forth herein.

20. No Waiver. No failure or delay by the Disclosing Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder.

20. Authority. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information. The Receiving Party affirms that the individuals executing this Agreement have the authority to bind the Parties to the terms thereof. This Agreement shall be binding upon recipient and its subsidiaries, successors, assigns, legal representatives, and all corporations controlling Recipient or controlled by Recipient, and shall inure to the benefit of Pure Technology Inc. and its subsidiaries, successors, assigns, legal representatives, and all corporations controlling Pure Technology Inc. or controlled by Pure Technology Inc.

21. Enforceability. In the event that any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

22. Signatures. This Agreement may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute one and the same document. Facsimile or electronically scanned signatures shall have the same force and effect as original signatures.

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized Representatives as of the date first indicated above.

 

Company:
Name:
Title:
Pure Technology Inc.
Name: Jared Sanborn
Title: Chairman & CEO

 

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Signed by Jared Sanborn
Signed On: July 6, 2022


Signature Certificate
Document name: Pure Technology NCNDA
lock iconUnique Document ID: 269961f948db300e55e682297467bed81fac5959
Timestamp Audit
May 19, 2022 1:45 pm EDTPure Technology NCNDA Uploaded by Jared Sanborn - waivers@25prospect.org IP 108.53.215.4
July 6, 2022 10:13 am EDTPT Waivers - waivers@25prospect.org added by Jared Sanborn - waivers@25prospect.org as a CC'd Recipient Ip: 108.53.215.4